Article 140

The Elephant At The Negotiating Table As Kurds and Iraqis Reach Oil Deal

Haywa Ridha

Over the past week or so, there have been many congratulatory articles written about the fact that Baghdad and Iraqi Kurdistan seem to have come one step closer to resolving long standing differences. But,

All about oil and money: An Iraqi flag flies at one of the nation's refineries.

In early December authorities in the semi-autonomous, northern region of Iraqi Kurdistan signed a deal with the federal Iraqi government in Baghdad. In return for a daily shipment of 250,000 barrels of oil from fields inside Iraqi Kurdistan and 300,000 barrels from the disputed territory of Kirkuk, currently held by Iraqi Kurdish military forces, the Iraqi federal government will pay the semi-autonomous region the 17 percent of the federal budget that is due to it.

For some time now the money due to be paid to Iraqi Kurdistan has been withheld, leading Iraqi Kurdish politicians to describe it as a “financial blockade” by Baghdad. The blockade has had serious consequences for the Iraqi Kurdish region’s economy.

Both parties were quick to celebrate their deal, a thorn in both governments’ sides for some time now. However, as observers were quick to note, while authorities gladly spoke about oil and money, there was absolutely no mention of another of the two parties’ most contentious issues: Article 140.

Article 140 of the Iraqi Constitution is supposed to deal with the country’s disputed territories – that is, land that Iraqi Kurdistan says is part of its quasi-independent region but which Baghdad says belongs to Iraq proper. This includes the much disputed area of Kirkuk. Article 140 outlines a series of steps that should be taken in order to resolve who exactly the disputed territories belong to – these are, firstly, normalization - a return of Kurds and other residents displaced by Arabisation – followed by a census taken to determine the demographic makeup of the province's population and then finally, a referendum to determine the status of disputed territories. Obviously whether a territory is home to mainly Kurds or mainly Arabs will have an effect on who can lay claim to the area.

After the extremist group known as the Islamic State began to take control of territory in the north of Iraq, the Iraqi Kurdish military took the initiative and took control of nearby Kirkuk, something they had long wanted via Article 140. In fact, Iraqi Kurdish President Massoud Barzani went so far as to say that Article 140 had now been implemented and that there was no point discussing it anymore.

For obvious reasons Baghdad doesn’t quite see it that way. The new Prime Minister of Iraq, Haider al-Abadi, has already said that part of his agenda for the year will involve working on Article 140. However he did not say how this might be done.

“Up until recently the topics of oil and the budget were the most important topics in meetings whenever officials from Baghdad and Erbil met,” Kaka-Rash Siddiq, who heads the Kirkuk office of High Committee on Implementing Article 140, told NIQASH. “It’s true that these are very important issues and that they affect the lives of all Iraqis. But the problem of the disputed territories is equally important,” he argued. “If no road map is formulated on these issues and if the Constitutional articles are not implemented, then things are just going to get more complicated in the future.”

Siddiq says that being based in Kirkuk, he – like all the other people that live there – is waiting to see what happens next. He also stressed that he was giving his opinion as a citizen, not as a politician.

Iraqi Kurdish local Yassin Hassan was a member of the Iraqi Kurdish team that went to negotiate in Baghdad. He said Iraqi officials preferred to concentrate on oil and the budget, mainly because, he thought, if the Iraqi Kurdish region managed to successfully export more oil and become financially independent, this might lead to national independence too. “That’s why they were not so happy when Article 140 came up,” Hassan says. He also says that prominent Sunni Muslim politician, Osama al-Nujaifi, told the negotiators that if Article 140 was implemented, then he feared there would be bloodshed all over Iraq.

“And officials from Iraqi Kurdistan were most concerned about getting the money they were owed in the budget, back,” Hassan says. “They were not as concerned about getting land back.”

It is also worth looking back at the history of this enmity between the Iraqi Kurds and Iraq’s Arabs – specifically the former Iraqi leader, Saddam Hussein. Hussein and Iraqi Kurdish leaders signed an accord that gave Iraq’s Kurds more autonomy and promised to deal with the issue of the disputed territory. However by the time the two parties were supposed to begin this process, their relationship was cold and becoming colder – in fact, in just a few years it would became an armed conflict. Baghdad was not willing to allow the Kurdish to control some of the wealthiest parts of the country and the Kurdish were unwilling to commit to any solution whereby they did not have control of Kirkuk.

“In the end, whoever is the strongest party will prevail,” suggests analyst and leading Iraqi Kurdish journalist, Arif Qurbani. “The stronger party will resolve the issue in its own interests.”

Qurbani believes that many politicians in Iraqi Kurdistan have already come to the conclusion that, even if Article 140 is implemented, the problem of the disputed territories will not be solved. That is why it hasn’t been a priority in recent negotiations.

“And if the Iraqi Kurdish region demands that Article 140 be implemented, then they would have to do that according to the Constitution,” Qurbani argues. “In which case, Iraqi Kurdish forces would need to withdraw from the land they are now occupying. But instead,” he concludes, “the Iraqi Kurdish are creating their own reality, on the ground.”